Supreme Court of United States.
*315 Mr. Tompkins McIlvaine, with whom Mr. Henry B. Closson was on the brief, for petitioner.
Mr. J. Aspinwall Hodge, appearing by appointment of Judge Ward, United States Circuit Judge, in opposition to the applications.
Restored to the docket for oral argument May 31, 1910.
*318 MR. JUSTICE HUGHES, after making the foregoing statement, delivered the opinion of the court.
When the complainant moved to remand the cause the Circuit Court had jurisdiction to determine whether or not a separable controversy existed which justified the removal from the state court. Its decision was an act within its judicial authority, subject to review upon appeal after final decree. On the application made to *319 this court in In re Pollitz, 206 U.S. 323, for a writ of mandamus to compel the remand, the court said (pages 331, 333):
"The issue on the motion to remand was whether such determination could be had without the presence of defendants other than the Wabash Railroad Company, and this was judicially determined by the Circuit Court, to which the decision was by law committed.
"The application to this court is for the issue of the writ of mandamus directing the Circuit Court to reverse its decision, although in its nature a judicial act, and within the scope of its jurisdiction and discretion.
"But mandamus cannot be issued to compel the court below to decide a matter before it in a particular way or to review its judicial action had in the exercise of legitimate jurisdiction, nor can the writ be used to perform the office of an appeal or writ of error.
"If the ruling of the Circuit Court was erroneous, as is contended, but which we do not intimate, it may be reviewed after final decree on appeal or error. Missouri Pacific Railway Company v. Fitzgerald, 160 U.S. 556, 582." See, also, Ex parte Nebraska, 209 U.S. 436; In re Winn, 213 U.S. 458, 468; Chesapeake & Ohio Railway Co. v. McCabe, Admx., 213 U.S. 207.
Having decided to retain the cause, the Circuit Court proceeded, as it was entitled to proceed, to try the issues. It heard the demurrers to the bill and overruling the others it sustained that of the Metropolitan Trust Company. No leave was granted to amend the bill and a decree was entered dismissing it as against the Trust Company. When, after final decree dismissing the bill as against the other defendants, the complainant appealed to the Circuit Court of Appeals, the decree in favor of the Trust Company was not brought before the appellate *320 court for review and the Trust Company was not a party to the appeal.
The decision of the Circuit Court of Appeals, in reversing the final decree and in directing the remand to the state court, was of course subject to the necessary limitation that it could apply only to the parties who had been brought before that court. It had no other purport. It is one of "the ordinary rules respecting appeals" that "all the parties to the record, who appear to have any interest in the order or ruling challenged, must be given an opportunity to be heard on such appeal." Davis v. Mercantile Trust Co., 152 U.S. 590, 593. See also Terry v. Abraham, 93 U.S. 38; Wilson v. Kiesel, 164 U.S. 248, 251. If a party has not had this opportunity he is not bound; as to him an essential element of appellate jurisdiction is lacking. Accordingly, when the decree was entered in the court below upon the mandate of the Circuit Court of Appeals, the Trust Company was expressly excepted from its operation.
It is in this light that the subsequent proceeding in the Circuit Court must be examined. If that court had jurisdiction to vacate to decree of January 10, 1908, in favor of the Trust Company, it was by virtue of its own control over the decree and not by force of the mandate of the appellate court. Nor could the court exercise the general power which it possesses to modify or set aside its orders or decrees prior to the expiration of the term at which the final decree is entered; for in this case that term had ended before the motion was made. Cameron v. M'Roberts, 3 Wheat. 591; Ex parte Sibbald v. United States, 12 Pet. 488; Bronson v. Schulten, 104 U.S. 410, 415; Ayres v. Wiswall, 112 U.S. 187, 190; Phillips v. Negley, 117 U.S. 665, 674. The motion was not made for the purpose of correcting a clerical error or an inadvertence. After the term had expired, and after the complainant had exercised his right of appeal to procure a review of the errors of which he *321 desired to complain, it was sought to set aside a decree which stood unreversed and by which the Trust Company had been dismissed from the cause.
To reach this result the Circuit Court asserted the power to vacate the decree upon the ground that it had been rendered without jurisdiction; and the court held that it must be treated as a nullity. But the decree cannot be so regarded unless the court, upon the motion to remand, was without jurisdiction to determine whether a separable controversy existed, and hence not merely committed error but exceeded its authority. The decree was not a nullity unless the order refusing to remand was a nullity; and the latter contention was negatived by the decision of this court upon the application for a writ of mandamus in In re Pollitz, supra. The reversal by the Circuit Court of Appeals of the final decree as to the other defendants, and its direction to remand, did not make the decision of the court of first instance any the less "a judicial act, and within the scope of its jurisdiction and discretion;" and as that reversal and direction did not affect the Trust Company the decree in its favor remained in full force.
The question is not with respect to the mere form of the application which was made to the Circuit Court for the purpose of setting the decree aside. When the motion was made the court was without jurisdiction to vacate the decree. As the court, in granting the motion, exceeded its power, mandamus is the appropriate remedy. Ex parte Bradley, 7 Wall. 364; In re Winn, 213 U.S. 458.
The rule is made absolute and the writ of mandamus awarded.
